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June 6, 1957


Appeal, No. 320, Jan. T., 1956, from judgment of Court of Oyer and Terminer of Philadelphia County, June T., 1946, No. 646, in case of Commonwealth of Pennsylvania v. Aaron Turner. Judgment reversed.


Edwin P. Rome, with him Walter Stein, for appellant.

Thomas M. Reed, Assistant District Attorney, with him Victor H. Blanc, District Attorney, and James N. Lafferty, First Assistant District Attorney, for appellee.

Before Jones, C.j., Bell, Chidsey, Musmanno, Jones and Cohen, JJ.

Author: Jones

[ 389 Pa. Page 242]


The trials of the appellant for murder for the same felonious homicide have amounted to a near tragedy of errors and all because the prosecution was initially conceived and undertaken on confessions wrung from the appellant and his co-defendants by coercive third degree police methods which served to render the confessions incompetent as evidence.

[ 389 Pa. Page 243]

Five times, the appellant has been convicted by a jury of murder in the first degree. Upon each of the first four convictions, the penalty was fixed at death; at the fifth trial, which is now before us for review, the jury imposed life imprisonment. The court below overruled the defendant's motions in arrest of judgment and for a new trial and entered judgment of sentence on the verdict from which the defendant has appealed.

The first three convictions were also appealed to this court (see 358 Pa. 350, 58 A.2d 61; 367 Pa. 403, 80 A.2d 708; and 371 Pa. 417, 88 A.2d 915) and, each time, a new trial was ordered except that, upon the first appeal, the new trial did not eventuate until the case had been carried to the Supreme Court of the United States. There, our earlier judgment of affirmance was reversed on the ground that the defendant's confession, which had been introduced in evidence over his objection, had been coercively extracted from him while he was being held incommunicado by the investigating police officers: see 338 U.S. 62. The fourth conviction was not appealed. The trial court set aside the verdict and granted a new trial because of patently prejudicial trial error: see 1 D. & C.2d 11.

The facts of the killing for which the defendant was indicted fully appear in the opinion for this court on the first appeal: see 358 Pa. 350, 351, et seq., and need not be reiterated here in detail. For present purposes, it is sufficient to relate that about 5 P.M. Saturday afternoon, December 15, 1945, the brutally beaten bodies of two men, Charles Simmons and Frank Endres, owner and employee, respectively, of the Ace Broom Factory, located on North Second Street in Philadelphia, were found lying in pools of blood on the floor of the factory. Both men were unconscious and neither ever regained consciousness before dying as a

[ 389 Pa. Page 244]

    result of his wounds. The only witness of the crime were its perpetrators and its victims.

The police interrogated many suspects and approximately five months later, viz., May 19, 1946, they took into custody one Clarence Lofton "relative to another murder" and not in connection with the broom factory killings. On June 3, 1946, Aaron Turner, the present appellant, was taken into custody around noontime by two Philadelphia detectives; and about 3 P.M. the same day the detectives arrested Jasper Johnson. Turner and Johnson along with Lofton were then detained by the police incommunicado until June 12, 1946, when they were delivered to the county prison.

On June 8, 1946, written confessions were obtained from Turner, Johnson and Lofton, each signing his own confession as well as the confessions of the other two. At Turner's first trial, the Commonwealth offered in evidence against him the confessions of all three accused. It is unnecessary here to restate the invalidating circumstances under which the confessions were obtained. Upon a review of Turner's first conviction, on certiorari to our judgment of affirmance, the Supreme Court of the United States held that the pertinent considerations left "open no other possible conclusion than that ... [Turner's] confession was obtained under circumstances which made its use at the trial a denial of due process" and that "the same considerations that bar admission of the confession by Turner made over his own name extend to his contemporaneous adoption of the Johnson and Lofton confessions": see 338 U.S. 62, 65.

As the confessions had constituted substantially the Commonwealth's entire case against the defendant at his first trial and with their exclusion upon a retrial thus foreordained by the Supreme Court's ruling, the Commonwealth was put to it to introduce other evidence

[ 389 Pa. Page 245]

    to support the indictment. The fact is that the prosecution's subsequent efforts to meet the exigency of proof, thus occasioned, has been productive of reversible error at each succeeding retrial that has come before us for review. For a proper understanding of the background of the appellant's present complaint, reference to the subsequent trials and appeals is essential in order that the continuity of the pervading error may become the more apparent.

At the second trial the Commonwealth, deprived of the confessions, offered in evidence admissions made by Turner at a preliminary hearing before a magistrate on June 8th which was the fifth day of his vitiating detention and prior to signing of the confessions. The magistrate's hearing was held in the same building in which the suspects were being detained and constituted but a very brief interlude in the persistent police questioning to which Turner, Johnson and Lofton were subjected. In holding that this evidence was inadmissible, Mr. Chief Justice DREW said for this court, - "Turner's signed written confession has been deemed the result of inherent coercion. Certainly statements or admissions which he made at the preliminary hearing held during the coercive period and prior to his execution of the condemned confession must be considered tainted by the same infirmity. It is evident that the United States Supreme Court did not regard the interlude of the preliminary hearing as having purged the coercion. We are constrained to hold, therefore, that the testimony taken at the magistrate's hearing was inadmissible as evidence against Turner as was his confession:" 367 Pa. 403, 407.

The foregoing was the principal ground for our reversal of the judgment of sentence although additional error was also noted in the trial court's failure to submit to the jury second degree murder as a possible verdict

[ 389 Pa. Page 246]

    and in the court's refusal to charge, upon specific request, that the testimony of Lofton, then a witness for the Commonwealth, was to be carefully scrutinized. Lofton, at his trial, had entered a plea of guilty to the charge of murder and had received a life sentence. But, the crucial error so far as substantive evidence in support of the verdict was concerned was the objectionable testimony derived from the magistrate's hearing.

The appellant had also assigned for error the trial court's refusal of his request that the Commonwealth's witnesses be excluded from the courtroom when not actually testifying. The importance of such a precaution became all too evident a little later when the two detectives, who had originally arrested Turner and had been present at, and had participated in, the June 3rd to 12th, 1946, interrogations of Turner, Johnson and Lofton, surprisingly gave incriminating testimony against Turner which they had never before disclosed to their superiors and specifically had not mentioned when testifying at the first trial. But, inasmuch as a new trial was being ordered because of the error already referred to, no mention was made in the opinion for this court with reference to the assignment of error based on the court's refusal to sequester the Commonwealth's witnesses.

With Turner's confession and, likewise, his admissions and statements at the magistrate's hearing thus effectually eliminated from the case, the Commonwealth at the third trial called Lofton as a witness and again introduced the testimony of the two police detectives which they had given for the first time at Turner's second trial and which, notably, was not until after the priorly all-important confession had been definitely excluded as evidence. The detectives' belatedly divulged testimony, which was designed to tie Turner to the actual commission of the homicides, consisted

[ 389 Pa. Page 247]

    of what the two detectives said they had eavesdropped on June 6, 1946, from where they were secreted near a cell in which the three suspects (Turner, Johnson and Lofton) were allegedly then being held. What the detectives purportedly overheard is related in the opinion for this court on Turner's appeal (see 371 Pa. 417, 421) when the trial court's refusal to sequester the Commonwealth's witnesses upon request of defendant's counsel became the chief error for which we again reversed and ordered a new trial.

At the fourth trial Lofton refused to testify for the Commonwealth and responded to the district attorney's interrogations as follows: "Just a minute, Chief. When you was up [at the Eastern State Penitentiary] last week I told you I had been tried and convicted and I preferred to have no more to say or do with the case. I am doing my time; I am doing life. There is nothing else that I can say in no way, shape or form." An extended colloquy between the witness and the court and district attorney ensued following which the district attorney moved for permission to read to the jury portions of Lofton's testimony a Turner's third trial together with the cross-examination. (As already noted, Lofton had not been called to testify at Turner's first trial.) The district attorney made this motion on the mistaken theory that Lofton, "having refused from the very beginning to testify at all", had thus rendered himself "an unavailable witness." The trial judge granted the motion over the objection of defendant's counsel. The case went to the jury and resulted in a verdict of guilty with sentence fixed at death. In disposing of the defendant's motion for a new trial, the court en banc erroneously approved the reading in evidence of Lofton's former testimony but did grant a new trial because of the prejudicial effect of a statement made by the district attorney within the hearing of the

[ 389 Pa. Page 248]

    jury referring to the defendant's three previous convictions for the same offense: See 1 D. & C.2d 11, 16.

After the fourth trial but prior to argument of the motion for a new trial, defendant's counsel received a request from Lofton in the Eastern State Penitentiary seeking an interview. Counsel immediately apprised the trial judge of Lofton's communication and, with the court's approval, visited him in confinement. On that occasion Lofton repudiated entirely all of the testimony that he had ever given against Turner. His recantation was at once reduced to writing and was signed by him in the presence of prison officials. He moreover swore to its truth before a prison official who thereupon notarized it. This affidavit was filed with the court as an additional reason for the granting of a new trial since the Commonwealth's principal witness against Turner had now admitted having perjured himself in everything he had ever theretofore testified to against him. A copy of the affidavit was submitted to the trial judge and to the district attorney. The effect of Lofton's recantation was urged upon the court en banc on the argument of the defendant's motion for a new trial, but the court did not, in its opinion granting a new trial for another reason, touch upon the significance of the affidavit.

In preparation for the impending fifth trial, Lofton was again visited at the Eastern State Penitentiary by defendant's counsel who promptly apprised the district attorney of that fact and at the same time informed him that Lofton persisted in his repudiation of his former testimony against Turner and would refuse to testify against him at the oncoming trial. After defendant's counsel and the district attorney had thus discussed Lofton's reaffirmed attitude, the district attorney made a trip to the penitentiary to interview him. Lofton confirmed to the district attorney that his affidavit

[ 389 Pa. Page 249]

    recanting his former testimony was the truth and that he would not testify against Turner, as the district attorney pressed him to do. Nonetheless, at the subsequent trial, the district attorney called Lofton as a witness for the Commonwealth and, as had been plainly forecast, the witness steadfastly refused to testify as the district attorney strove, by interminable and repetitious questioning, to get him to do in line with his earlier testimony. For his refusal to answer the district attorney's questions, the trial judge forthwith held Lofton in contempt of court. The district attorney then argued that Lofton, by his refusal to testify, had rendered himself an unavailable witness and that, therefore, his former testimony against the defendant should be read into the record, and moved the court for leave so to do.

It is, of course, too evident to admit of any doubt that the district attorney well knew when he called Lofton as a Commonwealth witness at Turner's fifth trial that he would refuse to testify to the same effect as he formerly had. Not only had the district attorney been so advised right up to the moment of his again calling Lofton as a witness but he was, moreover, the same district attorney who had appeared for the Commonwealth at Turner's fourth trial where he had witnessed Lofton's immovable refusal to testify against Turner. What, then, was the district attorney's motive in again calling Lofton? The answer is not hard to discern. In the impasse created at the fourth trial by Lofton's refusal to testify, the learned trial judge, on the district attorney's motion, had erroneously permitted him to read in evidence Lofton's former testimony against Turner on the ground that he had become an unavailable witness. It was that very procedural achievement at the fourth trial that inspired the district attorney to go ahead and again call Lofton.

[ 389 Pa. Page 250]

The record makes it abundantly clear that the district attorney expected or at least hoped to be permitted, in keeping with the trial court's ruling at the fourth trial, to read in evidence Lofton's former testimony as that of an unavailable witness. Thus, in arguing to the trial judge for the right so to proceed at the fifth trial, the district attorney said, "I now insist, if the Court please, that you rule on my motion to consider this witness, as was formerly done, an unavailable witness. The pattern is precisely the same as it was at that time. ... I would say this, Your Honor, that the Court en banc [on the fourth trial's after-verdict motions] having the same pattern before it at the phase of the case where the Commonwealth made a similar motion, decided that that was proper. ... That is the gist of my argument, if the Court please, to refer the Court to the opinion of the Court en banc in the prior Turner trial, as a basis of my contention of the motion made."

Obviously, Lofton was not an unavailable witness either within the letter or the spirit of the Act of May 23, 1887, P.L. 158. Not only was he then present in the courtroom but was actually on the witness stand at the time. Nor had he refused to testify to what he then avowed to be the truth. The fact is that he was willing to testify in accordance with his recantation. The matter of his affidavit having in the course of the colloquy between the court and counsel become known to the trial judge (who was trying the case for his first time), the court stated, "This man has been called as a witness. He says that this paper is the truth and he says he wants to tell the truth. In other words, he wants to testify to those facts." Such being the witness's status, the court very properly refused the district attorney's motion to read Lofton's former testimony in evidence as that of an unavailable witness.

[ 389 Pa. Page 251]

Thereupon, the district attorney himself introduced in evidence Lofton's recantation affidavit by interrogating him on direct examination in regard thereto as follows: "Q. .... You signed it and you swore it was the truth; is that right? A. I did. Q. And you still maintain that that is the truth; is ...

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